Let me be clear about this: As a cyberlaw professor and a professor of constitutional law, I can unequivocally state that one of the biggest dangers to democracy right now is electronic voting machines. If they are designed properly, they can enhance democracy. But if they are designed poorly, they can facilitate ballot fraud on a scale previously unknown in American history.

The question is not whether electronic balloting is a good thing or a bad thing. It is what kinds of electronic balloting have built in safeguards and checks against electronic fraud, and what kinds don’t. The recently passed Help America Vote Act (HAVA), includes $3.9 billion to help state and local goverments install hi-tech upgrades to their voting technology. What is being overlooked is that not all electronic voting systems are created equal. Some of the ones on the market, perhaps even most, have serious flaws that enable unscrupulous people to alter vote counts and commit massive electoral fraud. Some also are designed to leave no electronic backup or paper trail that would enable state officials to discover vote tampering or conduct recounts.

Several bloggers have begun posting stories about the dangers of poorly designed electronic voting systems. They have been spurred on by revelations that Nebraska Senator Chuck Hagel (R) had failed to disclose that he owns a stake in a company that owns Election Systems & Software (ES&S), a company that makes nearly half the voting machines used in the United States, including virtually all those used in his native Nebraska.

This conflict of interest has led a number of bloggers to speculate whether Hagel’s unexpectedly overwhelming victories in the Nebraska Senate race in 1996 and 2002 were due to artificial enhancements. They point out that ES&S's systems are among those which make it difficult if not impossible to discover electronic voter fraud and conduct recounts. I express no opinion on these speculations, but if you want more information, you can find discussions at Testify, Seeing the Forest, Alas, a Blog, Common Dreams, and Sideshow.

My apologizes to anyone else who posted stories on this issue that I overlooked.

As many of you know, I am a great critic of the Supreme Court’s decision in Bush v. Gore, which handed the presidency to George W. Bush through a particularly unpersuasive argument about when to grant a stay and about what constitutes an appropriate remedy for violates of the Equal Protection Clause. However, I also have said in print that I don’t think that the opinion’s holding that the Equal Protection Clause applies to vote tabulations is all that crazy; in fact it makes some sense. It extends the guarantee of equal protection from how voting districts are drawn to how votes are tabulated.

I also pointed out two other things, however

1. One problem with Bush v. Gore’s equal protection holding is that it did not carry its equal protection reasoning to its logical conclusion. The greatest problem of equality may stem not from hand counts but from unequal access to technologies that produce different degrees of reliability in vote counts.

2. Bush v. Gore seems to be premised on suspicion that Florida judicial officials were not being consistent in their hand counts; i.e., the Court, without directly saying it, was suggesting that perhaps the inconsistencies were not random, but might be politically motivated.

Putting these two points together, I submit that if Bush v. Gore is not simply a device concocted by five Justices to put Republicans in office, it should also stand for the proposition that the states and the federal government may not install voting technologies with a high degree of unreliability or a significant risk of voting fraud if there are other, equally available technologies at roughly the same cost that are more reliable and have safeguards against voting fraud.

In other words, although I hate and despise the manipulation of remedies that produced the actual result in Bush v. Gore, I think that we should take the Equal Protection holding of Bush v. Gore completely seriously. And I think that state and local governments should too. They should immediately demand that the technology companies they deal with install fail safe mechanisms to ensure voting reliability and prevent voting fraud, and if these companies refuse to do so, on the grounds that their data is protected by trade secret or other intellectual property rights, these contracts should be voided on the grounds that states may not install unconstitutional voting systems.

I’m being quite hardnosed on this, but it’s important to be hardnosed. There are lots of flaws in the American system of elections, but most of these flaws only matter every now and then in very close elections, like the crazy rules about the Electoral College and what happens if nobody gets a majority in the Electoral College. But the problems that electronic voting machines present are likely to occur in virtually every election held in this country-- federal, state and local -- from this day forward. If we don’t want our democracy to become a mockery, we have to pay the extra cost now to make sure our voting technologies are safe and adequate for the future.

Everybody in the U.S. is piling on the French these days. Tom Friedman is exasperated with their changing stances on Iraq. He wants to kick them out of their permanent seat on the U.N. Security Council and replace them with India, the world's largest democracy. And there are lots of great jokes making fun of the French right now, (which I am ashamed to admit I am enjoying immensely, having spent altogether too much time studying French philosophy in my misspent youth). Numerous explanations abound for their intransigence, including their national character, their irresponsibility, their flightiness, their ingratitude, and a whole host of other flaws.

But the French are also the country that gave us Descartes, Voltaire and the Enlightenment (ok, forget about Derrida). They are the masters of sang froid, brute realism, ironic detachment, and cold unsentimentality. Are they really all that crazy? Does their intransigence make any sense at all?

It all depends on what you think the purposes of the military buildup and the U.N. inspection regime are. If the point is to get all of the countries of the world together through the auspices of the U.N. to scare and threaten Saddam Hussein into submission, then it would make sense for France to jump on board and present Hussein with a unified threat by the international community: disarm or be deposed. That is, if what this is about is a game of chicken, then the French should not be intransigent. They should immediately help the U.S. present a unified front, which may have the salutary effect of strengthening the United Nations as an international peacekeeper in future conflicts against rogue states. That's something many Europeans would like, because it would draw the U.S. ever further into a multilateral way of conducting its foreign policy, and it would strengthen international institutions in which the French and other Europeans believe they will have greater influence in the long run.

The problem is that the French fear that they don't have any control over what the United States will do once they sign on. The French want to see how far they can push Hussein without going to war; but they may fear (and rightly so) that Bush isn't playing that game. They fear that he is determined to go to war regardless of what Hussein does. If that's so, then France's preferred strategy-- what Tom Friedman earlier called Chicken a'L'Iraq-- isn't available. You can't threaten Hussein to get him to back down, because the U.S. won't pull back at the brink, it's going to war whatever Hussein does, and so Hussein has no incentive to do anything but wait and prepare for war.

Thus, joining the U.S. doesn't get France its preferred strategy. The question is whether holding back approval is more likely to do so. But that's also a dangerous game, because if the U.S. gets tired of waiting for the French to join in, it may go ahead and attack with its "coallition of the willing" sometime near the beginning to middle of March. That would be a worse result: No clear U.N. approval, no precedent for international cooperation against rogue states.

However, the French may be reasoning as follows: The longer we hold out, the more the U.S. may be willing to offer us a war and post-war strategy more to our liking. The U.S. is going to war no matter what we do, so we can't get our first best strategy. But we might be able to get our second best strategy-- both during the course of the war and in the occupation thereafter-- by being a royal pain in the butt until the U.S. listens to us.

This seems to me the best explanation of what is going on right now. If all of the other countries in Europe thought the same way the French did, the U.S. would have a real problem on its hands. But most of the other countries in Europe see no particular advantage in holding out. They figure that they are in better shape signing on early than signing on late. The French, however, think that signing on late will given them additional concessions. That's why they are holding out even though everyone else is rushing to sign on, and why the jokes are flying. But nobody knows yet who will be laughing five years from now.

A fascinating discussion of the distribution of choices as the number of choices in a network increases, from Clay Shirky, via Instapundit. The power law idea tends to explain why choices on the Internet tend to cluster around a relatively small number of sites.

This is the second of two posts on Eldred v. Ashcroft and how the result is similar to Bowers v. Hardwick. The first post can be found here.

In today's post, I want to talk about the results in Eldred and Bowers from the standpoint of how social movements influence constitutional change through their influence on party politics.

There are two basic ways that social movements can effect constitutional change. The first is through Article V amendment, which is quite difficult to do: It requires approval by two thirds of each house of Congress and ratification by three fourths of the states. Thus, the more common way for social movements to influence constitutional law is through influencing judicial interpretations of the Constitution made by Article III courts.

There are two basic ways to achieve favorable interpretations by the federal judiciary. The first is through the party system; the second is through an appeal to elite values.

Although social movements are the great source of constitutional innovation, they will not succeed unless they gain the support of national political parties. The success of social movement interpretations of the Constitution depends on the successful forging of lasting connections between the social movement and the national party system.

For this reason, the constitutional claims of social movements tend to succeed or fail to the extent that they are taken up by national political parties. To be sure, sometimes a party is nothing other than the political wing of a social movement. That describes the Republican Party of the 1860's, which included many free soilers and abolitionists. Sometimes a social movement successfully takes over a political party, as occurred with the Democrats in the 1930's and the Republican party in the 1980's. In both of these cases, the fate of the social movement is clearly tied to the fate of the electoral success of the party. But more often, social movements do not take over a party. They compete for attention and influence with many other interests in a political party, and this greatly affects their success in shaping constitutional norms.

Although social movements play an important role in developing innovative constitutional claims, the party system plays an even more crucial role in filtering, coopting and translating the claims of social movements, including their constitutional claims. Political parties aggregate the claims of social movements with other claims in order to build national political support. In the process, social movement claims get restated, limited, translated into more politically palatable terms, or even put on the back burner by politicians and other party operatives. Equally important, political parties control access to the system of judicial appointments.

To put it bluntly, when constitutional claims of social movements are presented before courts, it matters a great deal whether the movement’s representatives have friends in high places, and in particular, on the federal bench. The more friends they have, the more likely they are to win. The fewer friends they have, the more likely they are to lose. And the most likely method of getting a social movement’s friends on the federal bench is through the judicial appointments process. So unless the social movement has enough clout to push its favored candidates through the appointments process, it is a matter of luck whether the jurists it encounters will be sympathetic to its highly innovative arguments. Indeed, the more innovative the arguments for change in constitutional norms, the less likely they will succeed without ideological allies in high places.

The second way that social movements can influence judicial interpretation of the constitution is through appeals to elite values. Judges tend to be chosen from elite ranks and therefore tend to share values that most elites share regardless of party. This is the best explanation of the Supreme Court’s decisions in Griswold and Roe v. Wade. In the 1960s and early 1970s, elites in both parties tended to support contraceptive rights. In fact, of Richard Nixon’s four appointments to the Supreme Court, three joined in the decision in Roe v. Wade. It was not until the mid 1970's that pro-life voters began moving into the Republican Party, and the issue of abortion became a clearly partisan issue, with Democrats becoming mostly pro-choice and Republicans mostly pro-life. At this point Democratic judicial appointees began to become clearly more pro-choice than judges appointed by Republicans.

These factors help explain the result in Bowers v. Hardwick. The gay rights movement had little clout in either political party in 1986, so its biggest chance at success was through an appeal to elite values along the lines of Griswold or Roe. That was good enough for four votes-- two liberal democrats (Brennan and Marshall) and two moderate republicans (Blackmun and Stevens). (Actually, it was almost good enough for five votes, because another moderate Republican, Lewis Powell, almost joined). Seventeen years later, the gay rights movement has started to show some real clout in both parties, although for right now the influence is much greater in the Democratic Party than the Republican Party because of the influence of religious conservatives in the Republican Party. (One should not, however, discount the presence of libertarian and moderate conservatives in the Republican Party who support gay rights as well as abortion). In the long run, I expect that the movement’s growing influence in both parties will translate into more and more judges sympathetic to gay rights.

From this perspective, the result in Eldred v. Ashcroft is also not very surprising. As of now, the issues that the free culture movement is concerned with do not have much influence in either political party. Indeed, neither political party seems to think that these issues will draw much voting support. If anything, politicians in both parties are more likely to support Big Media because of its lobbying power and campaign contributions. As a result, the best shot for victory in Eldred v. Ashcroft was through an appeal to elite values. But elites– particularly older elites– either do not understand the issues that the free culture movement raises or are divided over them. As a result, the plaintiffs in Eldred were able to manage only two votes in their favor.

Eldred’s lawyer, Larry Lessig, believed that he could connect his constitutional challenge to the Sonny Bono Act to the success of the conservative social movements of the 1980's. Those movements succeeded in placing several conservatives on the Supreme Court and many more in the federal judiciary. These conservative jurists loudly defended the principle of limited federal powers, Lessig reasoned, so perhaps they might accept an argument for limited federal powers under the Copyright Clause.

The problem with this strategy is that it took the doctrinal arguments of the conservative justices much too seriously. It did not sufficiently recognize that what lies behind constitutional law is constitutional politics. Conservative jurists on the Supreme Court offer arguments for limited federal power for largely symbolic and ideological reasons that are connected to the goals of the conservative social movements of the 1970's and 1980's. That is why those judges and Justices were put on the federal bench in the first place. Arguments for limited federal power allowed the conservative justices to strike down or limit the reach of federal laws-- particularly federal civil rights laws-- that they and other conservatives don’t particularly like. The argument for limited federal power also allowed the conservative Justices to strike a symbolic blow for state’s rights.

The Copyright Term Extension Act does not fit into these categories. It does not symbolically trench upon interests of the states, and it is not a liberal civil rights measure. It was generally understood, for better or worse, as a protection of property rights, and many conservatives tend to think that protecting property rights is a good thing. Perhaps, as Lessig hoped, genuine believers in limited federal government would have found his arguments attractive. But the result in Eldred simply demonstrates that the best explanation of conservative judicial behavior is not pursuit of limited federal government per se but rather pursuit of the policy preferences of the conservative social movements that currently dominate the Republican Party, and were responsible for putting those conservative judges on the federal bench.

The appeal to the conservative values of the Rehnquist Court failed because those values do not mesh with the goals of the free culture movement. But that does not mean that, in the long run, the two parties will not embrace some of those values. I’ll have more to say about how that might happen in my next post on this subject.

The Center for Public Integrity reports that Attorney General John Ashcroft is considering new legislation to give the federal government even greater powers over domestic intelligence gathering, while limiting judicial review of government action and restricting public access to information about what the government is doing. The Justice Department has not yet announced the new proposals, but apparently early drafts have already been completed. One of the most disturbing features of the proposed Domestic Security Enhancement Act of 2003 is that American citizens could lose their citizenship and be expatriated if they provide "material support" to any group the Attorney General has designated as a "terrorist organization." The idea, apparently, is that one who provides "material support" to such an organization-- even if such support is otherwise lawful-- is presumed to have intended to relinquish citizenship (because his intent can be inferred from his conduct) and therefore may be expatriated.

This gives new meaning to the expression, "America-- love it or leave it."

On a radio call in show, Rep. Howard Cobble (R. N.C.) who is chair of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, rejected the suggestion of a caller that Arabs should be placed in internment camps. The situation today is different than in World War II, he explained. The internment of Japanese-American U.S. citizens during World War II was justified in order to protect them.

On Thursday, in further explanation of his remarks he stated: "I certainly intended no harm or ill will toward anybody. I still stand by what I said ... that, in no small part, it (internment) was done to protect the Japanese-Americans themselves.

Hmm, that's not how I remember the history. Eric Muller agrees, and he has a nice post summarizing the facts.

I’m currently working on a scholarly article on how social movements succeed or fail in shaping American constitutional law. As I thought about the recent Eldred case, which refused to hold the Copyright Term Extension Act unconstitutional, I was struck by the similarities to Bowers v. Hardwick, the 1986 case in which the Supreme Court refused to hold that same sex sexual relations were constitutionally protected. I don’t mean to say that both decisions were equally unjust (or equally just). Given my politics, and my views about constitutional law, I happen to think that Bowers is a more troubling opinion than Eldred, but I understand that people may disagree, and some probably think that both cases are perfectly rightly decided.

Rather, what struck me about both cases is that both involved unsuccessful first attempts by a social movement to get the Supreme Court to accept some of the movement’s constitutional claims. Bowers is the first case in which the Supreme Court seriously considered and discussed at length the arguments of gay rights advocates; Eldred is the first case in which the Supreme Court has grappled with the emerging social movement for weaker intellectual property rights and “free culture.” In both cases, the Supreme Court decision reflected the beliefs (or prejudices) of a very large number of Americans who had not been exposed to the arguments of the social movement, and in both cases people feared that the social movement’s goals had been set back for many years by the loss. But, in both cases, I would suggest, such fears are unfounded.

Indeed, what Bowers produced was a resurgence of social movement activism by the gay rights movement. Unable to make their case in the federal courts, gay rights supporters shifted their strategies to influencing state, local and federal legislators and executive officials. Meanwhile, social attitudes changed, as there is a strong but not perfect correlation between the year that a person was born and their acceptance of homosexuality. Although not all young people support gay rights, more do than in previous generations. One suspects that in time, a very large number of Americans will accept that homosexuals deserve basic equal rights, or, at the very least, that same sex relations should not be criminalized.

By the time that the Supreme Court took its next major gay rights case in 1996, Romer v. Evans, the political landscape had changed greatly. A 5-4 majority struck down a Colorado state amendment that had been designed to preempt city and local ordinances protecting gay rights. What is important about Romer is that if you look at the new justices added since 1986 (Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer), four of them were in the majority in Romer, and two in dissent. That was enough to tip a 4-5 decision to a 5-4 decision. One should not assume that there are five clear votes for gay rights on the present Court; Boy Scouts v. Dale, which upheld the right of the Boy Scouts to fire an openly gay scoutmaster, went the other way. But it seems clear that the political and legal climate is changing in favor of gay rights. The Supreme Court has recently taken cert in Texas v. Lawrence, which asks whether Bowers v. Hardwick should be limited or overruled. It is quite likely that the Supremes took this case in order to overrule Bowers or at least severely cut back on it. Moreover, as I hope to discuss in my next post, it is altogether possible that future justices– even those appointed by Republicans– will be more sympathetic to gay rights claims than Burger (a Republican conservative) and White (a Democratic moderate) were in 1986.

In fact, the best evidence that times are changing is the vehemence with which the religious right has fought what it calls the “homosexual agenda.” When most Americans agree that homosexuality is illicit, it is not necessary to make such a fuss; rather majoritarian social mores are sufficient to lead judges and legislators to reject the claims of social movement advocates. But as the social movement gains steam, and convinces a larger and larger share of the public that it is making sense, opponents tend to become increasingly anxious, and you see energetic reaction and attempts at backlash. For me, the sign that the gay rights movement had drawn blood was the Defense of Marriage Act signed by President Clinton. The very notion that a state would legalize sex marriage was unthinkable in 1986; by 1996 religious and social conservatives were genuinely worried that it would happen in Hawaii, Alaska, or some place else. As it turned out, they were right. Vermont’s Supreme Court struck down its restriction on the right to marry as unfair to gays, and in response the legislature passed the nation’s first civil unions bill. The more vehement the attempt to stamp out a social movement once and for all, the clearer it is that the social movement is gaining ground.

When the justices first heard Bowers, most of them had very little acquaintance with the gay rights movement, and the AIDS epidemic was still surging. Much of America regarded homosexuality as immoral or unnatural or at least as abnormal. The Court’s treatment of the issue reflects these presuppositions. Chief Justice Burger and Justice White are said to have made distasteful remarks about gays during the Supreme Court conference following the argument, and their opinions show a palpable insensitivity to the rights of gays. Justice Powell, who cast the deciding fifth vote in Bowers, later said that in hindsight he regretted his decision, and that he might have changed his vote if he had ever met a gay person. This suggests that for people of Powell’s age, it was possible to spend one’s entire life without ever openly confronting homosexuality. In fact, Powell had met many gay people in his life, and had hired a number of gay clerks, including one clerk during the very term Bowers v. Hardwick was decided. He just didn’t know this, or else didn’t want to know.

There are interesting parallels to Eldred here. The free culture movement is relatively new. Although a fair number of young people tend to be sympathetic with it (because of their experience with things like peer-to-peer file sharing, the use of intellectual property to create their own websites and/or works of art), lots of other people, and in particular establishment types tend to see the movement as dreamers or pirates who are opposed to law and order, property rights and capitalism. The Supreme Court is stocked by Justices who are, to put it mildly, not technophiles; they don’t share the same cultural experiences and assumptions that motivate the free culture movement. The conservatives believe in protecting property rights and they generally don’t like innovative first amendment arguments unless they protect the rights of Christian conservatives, or business organizations. Thus it’s not surprising that there was very little sympathy for the arguments in made Eldred.

Losing in the courts in Eldred, just like Bowers, will lead social movement members to push for legislative and administrative reform. In large part this may be a good thing; social movements tend to atrophy or lose force if they rely too heavily on courts to push their constitutional claims and policy positions. An important difference, however, is that intellectual property law is largely federalized. That means that free culture advocates cannot easily begin in state and local fora, in the way that gay rights advocates did. They must concentrate their efforts largely in Congress and federal administrative agencies. That puts them at a comparative disadvantage. The fact that gay rights advocates could move to the states exemplifies one of the great advantages of federalism– not the federalism currently preached by the Supreme Court– which is largely used to protect states who wish to violate civil rights laws– but the basic structural idea that there are multiple legislative fora in which to press for social movement reform.

Finally, time is on the side of the free culture movement, just as it is on the side of the gay rights movement. The more comfortable people are with the new digital technologies, the more they will come to understand the value of arguments free culture advocates are making, even if they do not accept them in all respects. One suspects that we will also see increased vehemence in the attacks directed against the free culture movement as it gains support. My prediction is that the free culture movement's claims will win out, although not necessarily in precisely the way they are articulated today. No social movement gets everything it wants, but successful ones often lead to important changes in society. I think the free culture movement may, in time, have a profound effect on how we live our lives in the future.

In my next post on this topic, I’ll continue my discussion of the similarities between Eldred and Bowers. In particular, I will discuss the role that political parties play in the success or failure of social movements, both through legislative reforms and through the appointment of judges or justices who are sympathetic to the claims of social movement advocates.

Note-- I've added the second post following the first because the permalink does not appear to be working properly.

How Eldred v. Ashcroft is like Bowers v. Hardwick, Part II

This is the second of two posts on Eldred v. Ashcroft and how the result is similar to Bowers v. Hardwick. The first post can be found here.

In today's post, I want to talk about the results in Eldred and Bowers from the standpoint of how social movements influence constitutional change through their influence on party politics.

There are two basic ways that social movements can effect constitutional change. The first is through Article V amendment, which is quite difficult to do: It requires approval by two thirds of each house of Congress and ratification by three fourths of the states. Thus, the more common way for social movements to influence constitutional law is through influencing judicial interpretations of the Constitution made by Article III courts.

There are two basic ways to achieve favorable interpretations by the federal judiciary. The first is through the party system; the second is through an appeal to elite values.

Although social movements are the great source of constitutional innovation, they will not succeed unless they gain the support of national political parties. The success of social movement interpretations of the Constitution depends on the successful forging of lasting connections between the social movement and the national party system.

For this reason, the constitutional claims of social movements tend to succeed or fail to the extent that they are taken up by national political parties. To be sure, sometimes a party is nothing other than the political wing of a social movement. That describes the Republican Party of the 1860's, which included many free soilers and abolitionists. Sometimes a social movement successfully takes over a political party, as occurred with the Democrats in the 1930's and the Republican party in the 1980's. In both of these cases, the fate of the social movement is clearly tied to the fate of the electoral success of the party. But more often, social movements do not take over a party. They compete for attention and influence with many other interests in a political party, and this greatly affects their success in shaping constitutional norms.

Although social movements play an important role in developing innovative constitutional claims, the party system plays an even more crucial role in filtering, coopting and translating the claims of social movements, including their constitutional claims. Political parties aggregate the claims of social movements with other claims in order to build national political support. In the process, social movement claims get restated, limited, translated into more politically palatable terms, or even put on the back burner by politicians and other party operatives. Equally important, political parties control access to the system of judicial appointments.

To put it bluntly, when constitutional claims of social movements are presented before courts, it matters a great deal whether the movement’s representatives have friends in high places, and in particular, on the federal bench. The more friends they have, the more likely they are to win. The fewer friends they have, the more likely they are to lose. And the most likely method of getting a social movement’s friends on the federal bench is through the judicial appointments process. So unless the social movement has enough clout to push its favored candidates through the appointments process, it is a matter of luck whether the jurists it encounters will be sympathetic to its highly innovative arguments. Indeed, the more innovative the arguments for change in constitutional norms, the less likely they will succeed without ideological allies in high places.

The second way that social movements can influence judicial interpretation of the constitution is through appeals to elite values. Judges tend to be chosen from elite ranks and therefore tend to share values that most elites share regardless of party. This is the best explanation of the Supreme Court’s decisions in Griswold and Roe v. Wade. In the 1960s and early 1970s, elites in both parties tended to support contraceptive rights. In fact, of Richard Nixon’s four appointments to the Supreme Court, three joined in the decision in Roe v. Wade. It was not until the mid 1970's that pro-life voters began moving into the Republican Party, and the issue of abortion became a clearly partisan issue, with Democrats becoming mostly pro-choice and Republicans mostly pro-life. At this point Democratic judicial appointees began to become clearly more pro-choice than judges appointed by Republicans.

These factors help explain the result in Bowers v. Hardwick. The gay rights movement had little clout in either political party in 1986, so its biggest chance at success was through an appeal to elite values along the lines of Griswold or Roe. That was good enough for four votes-- two liberal democrats (Brennan and Marshall) and two moderate republicans (Blackmun and Stevens). (Actually, it was almost good enough for five votes, because another moderate Republican, Lewis Powell, almost joined). Seventeen years later, the gay rights movement has started to show some real clout in both parties, although for right now the influence is much greater in the Democratic Party than the Republican Party because of the influence of religious conservatives in the Republican Party. (One should not, however, discount the presence of libertarian and moderate conservatives in the Republican Party who support gay rights as well as abortion). In the long run, I expect that the movement’s growing influence in both parties will translate into more and more judges sympathetic to gay rights.

From this perspective, the result in Eldred v. Ashcroft is also not very surprising. As of now, the issues that the free culture movement is concerned with do not have much influence in either political party. Indeed, neither political party seems to think that these issues will draw much voting support. If anything, politicians in both parties are more likely to support Big Media because of its lobbying power and campaign contributions. As a result, the best shot for victory in Eldred v. Ashcroft was through an appeal to elite values. But elites– particularly older elites– either do not understand the issues that the free culture movement raises or are divided over them. As a result, the plaintiffs in Eldred were able to manage only two votes in their favor.

Eldred’s lawyer, Larry Lessig, believed that he could connect his constitutional challenge to the Sonny Bono Act to the success of the conservative social movements of the 1980's. Those movements succeeded in placing several conservatives on the Supreme Court and many more in the federal judiciary. These conservative jurists loudly defended the principle of limited federal powers, Lessig reasoned, so perhaps they might accept an argument for limited federal powers under the Copyright Clause.

The problem with this strategy is that it took the doctrinal arguments of the conservative justices much too seriously. It did not sufficiently recognize that what lies behind constitutional law is constitutional politics. Conservative jurists on the Supreme Court offer arguments for limited federal power for largely symbolic and ideological reasons that are connected to the goals of the conservative social movements of the 1970's and 1980's. That is why those judges and Justices were put on the federal bench in the first place. Arguments for limited federal power allowed the conservative justices to strike down or limit the reach of federal laws-- particularly federal civil rights laws-- that they and other conservatives don’t particularly like. The argument for limited federal power also allowed the conservative Justices to strike a symbolic blow for state’s rights.

The Copyright Term Extension Act does not fit into these categories. It does not symbolically trench upon interests of the states, and it is not a liberal civil rights measure. It was generally understood, for better or worse, as a protection of property rights, and many conservatives tend to think that protecting property rights is a good thing. Perhaps, as Lessig hoped, genuine believers in limited federal government would have found his arguments attractive. But the result in Eldred simply demonstrates that the best explanation of conservative judicial behavior is not pursuit of limited federal government per se but rather pursuit of the policy preferences of the conservative social movements that currently dominate the Republican Party, and were responsible for putting those conservative judges on the federal bench.

The appeal to the conservative values of the Rehnquist Court failed because those values do not mesh with the goals of the free culture movement. But that does not mean that, in the long run, the two parties will not embrace some of those values. I’ll have more to say about how that might happen in my next post on this subject.

I just finished participating in the conference that I organized along with Yale Law Women to commemorate the thirtieth anniversary of Roe v. Wade. The sessions were packed and lively. The second two sessions were devoted to the question of "What Roe v. Wade Should Have Said." The panelists, all prominent American constitutional law professors, were asked how they would have written the opinon in Roe v. Wade (and the companion case of Doe v. Bolton) if they knew then what they know now. They were only permitted to cite sources available as of January 22nd, 1973, when Roe and Doe were originally decided.

One of the highlights of the session was a spirited exchange between the University of Minnesota's Michael Stokes Paulsen and my colleage Jed Rubenfeld on the status of the fetus-- or, as they put it, over whether an acorn is an oak tree. Mike Paulsen's strongly pro-life views, delivered to an audience that I presume was probably more pro-choice than pro-life, had a powerful effect.

My colleague Akhil Amar took a very interesting position-- he would strike the Texas law in Roe down because it was passed at a time when women didn't have the right to vote. What would happen if the Texas legislature then repassed an identical statute? Well, it would depend on whether the Texas Legislature had a representative number of women in it. Well, Akhil was asked, what if Texas had an initiative or referendum on the same law, so that women could vote on it? At that point, he suggested, he didn't know what he would decide. He would have to see what happened. And what about the Georgia statute in the companion case of Doe v. Bolton, which was passed in 1968, when women had the right to vote? The state courts should be allowed to clarify the meaning of the statute, Akhil explained.

Some members of the audience, I suspect, thought that this was taking the easy way out. What it suggests to me is that Akhil really doesn't believe in a substantive right to abortion, but rather is interested only in procedural guarantees of due process. But that leaves open the very interesting question whether the same logic applies to other statutes that effect women's rights-- i.e., they aren't necessarily unconstitutional as long as women have the right to vote.

Another very interesting feature of the discussion among the members of the mock Supreme Court was whether courts should push legislatures to be proactive in creating a world that respects women's work and the social and financial hardships of motherhood. Both my colleague Reva Siegel and Robin West of Georgetown pointed out that Congress had responsibilties to pass legislation enforcing sex equality norms that courts could not enforce on their own. Both are strongly pro-choice. Nevertheless, the nature of abortion regulation, they insisted, looks very different if there is a significant set of commitments by state legislatures or by the federal governrment to the support of mothers and to the welfare of children *after* they are born.

Anita Allen-Castellitto of Penn Law School argued that there should be no statutorily prescribed time limit on when women could get abortions; rather, legislatures should rely on doctors to act as a gatekeeper. Doctors won't perform very late abortions unless the woman's life is really at stake.

Jeffrey Rosen of George Washington Law School (and the New Republic) supports abortion rights as a policy matter, but argued that the courts should have stayed out of it. Both he and I considered the idea that Roe has been a political disaster. We both argued that it has strongly shaped contemporary American politics. Jeff thinks it has badly skewed the judicial appointments process. I think that it has been a boon to the Republican party, but not necessarily bad for the country. Mark Tushnet of Georgetown doubted that its political effects have been as great as Jeff and I believe. He argued that Ronald Reagan would have been elected in 1980 whether or not Roe v. Wade had been decided.

Mark's opinion for the conference was, literally, Justice Douglas's concurring opinion in Roe. His point was that the thinking of the Justices in 1973 was much more constrained by their times than we generally imagine, and that what they produced made much more sense than we usually give them credit for given who they were and the world in which they lived.

This week’s I Ching question comes from Joyce Park, who writes with pride “Having been born in the only country with I Ching symbols on the flag, I’m game!” (That’s South Korea, for those of you who were wondering.)

Her question is:

“Will the media companies seek a further extension of copyright law by 2019?”

Generally speaking one shouldn’t ask the I Ching questions that one already knows the answers to ;-). But what the heck, perhaps the Book of Changes has some additional wisdom to share with us.

I consulted the Book of Changes, and I received hexagram 13 (Fellowship with People), line 3 moving.

Here is the text:

Nine in the third place:

Hiding armed troops in the thicket,
He climbs the high hill.
Yet for three years he does not rise up.

The commentaries on the line read:

In the third line, the group’s unity has been compromised by mistrust. The participants have developed divergent interests and goals. Cooperation has given way to competition. Each person has his own secret ambitions and seeks to dominate the others. Hence the text says, “[h]iding armed troops in the thicket.” Moreover, knowing his or her own mental reservations, each person suspects the others of having similar designs, for when people are no longer trustworthy, they no longer trust anyone else. Each person begins to spy on the others, hoping to catch them in their duplicity. And all of the remarks and actions of others, however innocent, can be interpreted as signs of impending betrayal or ambush. Cycles of mutual distrust and alienation grow. As a result, the group can make no progress.

You must break the cycle of mistrust before it becomes too pronounced. Reexamine your goals and your hopes for the group. Secrecy must give way to open discussion. A new agreement on the goals and aims of the fellowship must be forged in light of changed circumstances so that trust can be reestablished and bonds of loyalty renewed. If the participants can recognize that they are indeed working on a joint enterprise, they will be able to live with disagreements about how to proceed.

The theme of this line is the mistrust generated when people try to grab everything for themselves. Then they spread distrust and antagonism in society, and destroy the common bonds that make successful cooperation possible. For someone like me, who thinks that our culture is a common product that we all share in and benefit from, the message is quite clear. Media companies are in the business of maximizing profits, so they will probably try to grab as much as they can, but this is not necessarily a good thing. Rather, we have to come to a new bargain about culture in the digital age that will allow media stakeholders to make a living but will also benefit society as a whole. The current path we are traveling– which simply encourages companies to push for greater and greater control over media products with less and less concern about the public domain-- does not accomplish this.

At the same time, people who want freer access to media products (and I count myself in this group) must behave responsibly and give media companies reasons to trust that they will not be taken unfair advantage of. They should work toward positive legal and technical solutions that help establish and enforce a new social bargain about culture. It's important to understand that the current policies of media companies seeking expansive intellectual property protections and control over consumers are not simply motivated by the desire to make money; they are also motivated by the fear and uncertainty produced by the disruptive effects of new digital technologies. Only a new bargain that respects the interests of all will prove stable and produce beneficial cooperation in the long run.

If you have a question you would like posed to the I Ching, please send it along by e-mail. I’ll pick a question every week or so and publish the results online. Please don’t ask questions you wouldn’t want generally discussed in public. And please don’t ask about stock tips; the Oracle has been warned more than once about the rules against insider trading.

In an earlier post, I explained why the Supreme Court's decision in Eldred v. Reno placed the constitutionality of the Digital Millenium Copyright Act in doubt. Guy Pessach, one of the fellows at my center, the Information Society Project, has offered yet another reason why the DMCA is unconstitutional. Eldred assumes that Congress can extend the length of copyrights, as long as Congress does not try to create copyrights of indefinite or perpetual duration. In this sense, Eldred still holds that Congressional power is limited. However, the DMCA has no time limit. It makes it a crime to interfere with copyright management schemes even after the material protected passes into the public domain. If Congress has power to pass the DMCA, it is not under the Copyright Clause.

We can take Guy's argument one step further. The first amendment objection to the DMCA is that by restricting access to fair use, Congress has created a new property right that allows copyright owners to do an end run around fair use, effectively shrinking the public domain. In addition it extends that property right to prohibit the use and dissemination of technologies that would protect fair use and vindicate fair use rights. In like fashion, one can also argue that the DMCA creates new property rights that allows people the right to do an end run around the limited times requirement. Because this “alters the traditional contours of copyright protection,” it violates the First Amendment, even though Congress would be perfectly free under Eldred to extend the copyright term by a specific and determinate amount.

My op-ed on Roe and the Republican party's coalition appears in today's New York Times.

The Times, like most newspapers, gives you only about 700 words to make your argument, so I thought I’d add a few additional explanations about three important points that the op-ed raises. The first is how judicial review affects political coallitions, the second is how the Supreme Court diverts political heat onto itself, and the third is the special place of religion as a divisive issue in politics. These three ideas are analytically distinct, but they all apply to Roe, and for lack of space, they all had to be explained together in the op-ed. I'd like to separate them out in this post.

1. Judicial Review and Party Coalitions. The basic idea that shifting policy agendas shifts party coalitions is nothing new. The classic explanation of how judicial review preserves or destroys party coalitions by shifting policy agendas was made by Mark Graber in his article "The Nonmajoritarian Difficulty," published in 1993, and the basic idea about how shifting policy agendas fractures political coalitions was explained by William H. Riker in his book The Art of Political Manipulation (1986). Both used the Supreme Court’s decision in Dred Scott v. Sandford as an example, and Graber showed how the same logic applied to Roe.

The basic idea is this: Through its exercise of judicial review, the Supreme Court can either keep party coalitions together or it can fracture them. Roe is an example of the former, Dred Scott is an example of the latter. Both involve striking down statutes, but the issue is not really whether the Court strikes down something or upholds it. It is whether the decision keeps the party system together or blows it apart. Roe helps keeps the contemporary party system together, Dred Scott blew the party system of its day apart.

Before Dred Scott, the Democratic Party was amazingly successful at winning the Presidency. It did so because it was a coalition of Southern Democrats who were devoted to the preservation and spread of slavery, and Northern Democrats, who cared less about the issue. Instead, they dealt with the question through a series of compromises. Democrats in the North instead pushed for the idea of popular sovereignty. Each state and, more importantly, each territory could decide for itself whether it wanted to be free or slave. Dred Scott made this position impossible, because it held that Congress could not ban slavery in the territories, and that slaveowners had the right to bring slaves into the territories. This split the Democratic Party in two, destroying its chances at winning the presidency. As a result, Abraham Lincoln won the White House. Unable to accept the Republican Party’s control, South Carolina seceded, beginning the Civil War.

From the standpoint of the Democrats, Dred Scott was a terrible blunder because the Supreme Court made it impossible to form a working majority within the Democratic Party. On the other hand, if you think that slavery would never have been resolved peacefully, it was probably better that the Court wreck the coalition and get on with the War. In the casebook that Paul Brest, Sandy Levinson, Akhil Amar, and I edit, we have this to say about the timing issue:

If one objects to Taney's opinion on the grounds that it hastened war, consider that a decision freeing Dred Scott would surely have generated intense opposition by the already secession-prone Southerners, who might not have waited until 1860-61 to attempt secession. Consider also that the North might not have won a war begun in 1857, especially because of its lack of military preparedness and the fact that its Commander-in-Chief would have been the feckless James Buchannan rather than Abraham Lincoln. Is this a good reason to support the result in Dred Scott--that it bought the North valuable time? Or is your view that justice, i.e., the repudiation of slavery, should be done (and, indeed, is required by the Constitution) though the heavens (or, at least, the Union) fall?

Another recent example of how Supreme Court decisions affect coalition formation is affirmative action. The Democratic party includes African Americans, Latinos and white liberals who strongly support affirmative action, and moderates who are iffy on affirmative action. In this case, its possible that by applying strict scrutiny to affirmative action programs, the conservative Justices in the Supreme Court are actually keeping some people in the Democratic Party, because they limit how far the left wing of the party can push for affirmative action. The logic is very similar to that in Roe, with the parties reversed. If Croson and Adarand were overruled, it might not work to the advantage of the Democrats.

But the issue on the table right now is not overturning those decisions; It is extending them by overruling Bakke. That shifts the political agenda in a different direction than overruling Croson and Adarand, because it means less affirmative action, not more. If Bakke were overturned, and Croson and Adarand applied to university admissions, you might get more movement toward the Democrats than movement away from them.

2. Judicial Review and the Supreme Court as Lightning Rod. A different idea in the piece is that the Supreme Court can act as a lightning rod, taking heat from the political process and onto itself. The best recent example of this would be Judge Richard Posner’s argument about the 2000 Election. Even if the decision in Bush v. Gore didn’t make much sense as a matter of legal argument, Posner argues, it had the beneficial effect of resolving the disputed election and preventing riots in the streets. If Posner is right on his facts, I think this is an excellent example of how the Supreme Court can act as a lightning rod. I’ve argued in a recent article that Posner is wrong on the facts; there were no riots in the streets, and there were unlikely to be riots in the streets. The Democrats did not suggest that they would take no prisoners if they lost. (Ironically the party that was most likely to threaten civil disorder if they lost was the Republican Party, and since they are the law and order party we know they would never do a thing like that. :-) ). Therefore, it was unnecessary for the Supreme Court to act as a lightning rod to resolve the election, and it should not have done so. Still, it is true that two years after the 2000 election the bitterness about the election is largely sublimated in the general public, so perhaps Posner is right, although I’ve also argued that the memory of the election may still come back to haunt the Bush Presidency, like Poe’s tell tale heart. Only time will tell.

3. Religion as a Coalition Busting Issue. The final point the piece makes is that certain types of issues tend to be coalition busting and diffusing them by shifting the grounds of political agendas helps working majorities form; by contrast, other issues are less threatening to coalition building and controversies are less problematic for democratic politics. Slavery was one such divisive, coalition busting issue. I tend to think that religion is another, at least in contemporary America. This is not an argument against the recognition of religious argument in the public sphere, which I support. Rather it is an argument for certain types of decisions about religious liberty that help religious and secular people inhabit the same political space and belong to the same political party. One interesting feature of American politics is that although religion has played a central role in the development of American values, the political parties have usually been quite polyglot. The Democrats, for example, contained both Southern Baptists and urban Catholics. One reason why I support some types of changes in the current doctrines of religious liberty and not others is because of how they affect the everyday practice of politics. I hope to say more about that later.

In an earlier post, I explained that I did not think that Roe v. Wade would be likely to be overturned, although it was quite possible that future Republican judicial appointments would chip away at it severely.

The long run future of Roe as a precedent, however, does not simply concern abortion but also new reproductive technologies like cloning. Congress is currently considering legislation that would ban human cloning. Roe is important to this debate, because it is relevant to the constitutionality of any legislation affecting cloning.

Roe builds on Eisenstadt v. Baird, which tells us that “[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child..” It also builds on Skinner v. Oklahoma, which held that the state could not sterilize convicts for certain crimes because the right to procreate is fundamental.

Proponents of cloning could use Skinner, Eisenstadt and Roe to defend the right to clone. They would use Roe in two different ways.

Prospective parents wish to create new children through cloning. This is the decision whether or not to bear a child. It does not matter whether the method of producing a child is traditional, so the argument goes, because in vitro fertilization does not use traditional methods, and it should equally be protected by Skinner, Roe and Eisenstadt. Especially for couples who cannot have children any other way, the right to clone is constitutionally protected. And even for those who could produce children the old fashioned way but choose not to, Roe still protects that choice.

But Roe is important in another way too. The decision to clone is also the decision to end the life of embryos, because it is likely under current technologies that some number of embryos will be discarded in the process of cloning. (And some fetuses may be discarded in the process too, if the results go awry later in the process.). But, the advocates of cloning might say, that is ok because of Roe v. Wade.

To be sure, the proponents of cloning might argue, the right to clone is not absolute. The state may impose requirements, even stringent requirements, to ensure that the children produced are healthy, and to avoid damage to the gestational mother who carries the cloned baby. But the basic choice whether to use cloning or not, these proponents would say, is beyond the state’s power. The state may not prohibit cloning because it thinks it immoral; it may only legislate to protect health and safety of the DNA donors, the cloned baby, and the gestational mother.

That’s how Roe might be used in a very simple argument for cloning. (I think the argument could be improved with a bit more effort, but that's a first cut). Could Roe v. Wade also be used in an argument against cloning? You bet.

First, opponents of cloning might point out that Roe is premised on the notion of forced motherhood. Women who get pregnant are subject to the social stigma of putting a child up for adoption, and so they will keep the baby and this will completely change their lives. But the prohibition on cloning has nothing to do with forced motherhood. Prohibiting the creation of human clones forces no woman to become a mother against her will.

Second, Roe is really a case (and should have been originally viewed as a case) about women’s equality. Abortion rights are necessary for women to be equal citizens in American society. But human cloning doesn’t substantially contribute to women’s equal citizenship. The inability to clone babies does not subordinate women. Indeed, one could argue in precisely the opposite direction: Cloning will lead to selection of boys over girls, or the selection of traits that will reinforce stereotypes that undermine women’s equality.

Third, Roe is premised on the idea that in order to guarantee women’s liberty and equality, a painful choice must be made to end the life of the fetus. But in the case of cloning, the discarded embryos (or fetuses) are not discarded in order to keep women from forced motherhood. The balance between liberty rights and the life of the embryos or fetuses is completely different in the case of cloning, and therefore should tip the balance against the procedure.

Now these three arguments don’t make Roe *necessary* to the case against cloning. They show that the case against cloning is entirely consistent with the principles behind Roe. But they do so by interpreting Roe as a case about forced motherhood and women’s equality.

This is ironic for two reasons. First, the forced motherhood/equal citizenship argument is the interpretation that feminists and liberal constitutional scholars have been pressing on the courts for years. Second, it is also the interpretation that has been most powerfullly resisted by pro-life forces, who tend to see Roe as a misguided application of a right to privacy that they don’t accept in the first place, and who tend to regard feminist and liberal arguments about abortion as destructive of family values.

But every argument, if invoked often enough in enough different contexts, eventually becomes useful to a different group of people. This is what I call the principle of “ideological drift.” It turns out that the best arguments for not extending Roe to the case of human cloning are based on liberal and feminist justifications for Roe. That doesn’t mean that pro-life forces need to become liberals or feminists. But it does mean that changing contexts may reveal some wisdom in arguments they have rejected for years.

The converse, I think, is also true. As new reproductive technologies like cloning develop, people on the left who are concerned about equality and social hierarchy will increasingly see the value in pro-life arguments about the misuse and abuse of human life. As Mr. Huxley says, it's a brave new world, folks, and that world will surely upend the political certainties of the past all across the political spectrum.

In a recent e-mail Gary Haubold, responding to my post on the coming war with Iraq, takes issue with my reasons for caution:

Here’s what I said:

The major problem, as I see it, is that we really don’t know how long the war will last, how many people will be killed and dislocated, how many refugees we will create, how many lives we will shorten through sickness and famine, whether we will destabilize other regimes in the Middle East, and whether America’s enemies will use our preoccupation to gain advantages elsewhere in the world (think about North Korea, for example).

Here’s Gary’s concern:

Thinking back over every war the United States has fought over the past 200+ years, I can't identify one war that would have been supportable under your framework. Did you really mean to write that the U.S. shouldn't fight any war, because the consequences are so extreme and unknowable?

Gary reads me as saying we should never go to war in conditions of uncertainty. Of course, that’s not my position. One always goes to war in conditions of uncertainty. But before going to war, you must ask: How many casualties are likely to your people and to the other side, and what collateral consequences will occur? How will this affect your strategic situation, five, ten, twenty years from now? While the war with one enemy is going on, what will your other enemies do in response while you are preoccupied? If you do manage to win, how long will you have to occupy your former enemy’s country? How much will the occupation cost? What new wars and conflicts will your occupation provoke? If you don’t ask these sorts of questions, you are just being foolish. This is exactly what the great military strategist Sun Tzu said two thousand years ago. He who reduces uncertainty before going into battle wins, he who embraces uncertaintly loses. That is what I meant by my previous post. The problem is that right now we are not reducing uncertainty. We are embracing it.

There is some evidence that the war with Iraq will not be as painless or quick as the President hopes, but put that aside. Even if the war is painless and quick, as I hope it will be, there is good reason to think that the occupation following the war will be particularly difficult and complicated. Jim Fallows has offered a good summary of the problems, and I recommend it to Gary and to anyone else who is interested. I don’t think one can make a decision about going to war without taking these issues into account. I fear that the Bush Administration is not being sufficiently realistic about these issues. I think there is a lot of wishful thinking going on about about American invulnerability, and about America's ability to remake Iraq any way it wants.

At one point Fallows interviews Merrill McPeak, a retired Air Force General who is dubious about a preemptive strike:

There is an even larger realm of imagination [necessary to understanding the costs of war], McPeak suggested to me. It involves the chain of events a war can set off. Wars change history in ways no one can foresee. The Egyptians who planned to attack Israel in 1967 could not imagine how profoundly what became the Six Day War would change the map and politics of the Middle East. After its lightning victory Israel seized neighboring territory, especially on the West Bank of the Jordan River, that is still at the heart of disputes with the Palestinians. Fifty years before, no one who had accurately foreseen what World War I would bring could have rationally decided to let combat begin. The war meant the collapse of three empires, the Ottoman, the Austro-Hungarian, and the Russian; the cresting of another, the British; the eventual rise of Hitler in Germany and Mussolini in Italy; and the drawing of strange new borders from the eastern Mediterranean to the Persian Gulf, which now define the battlegrounds of the Middle East. Probably not even the United States would have found the war an attractive bargain, even though the U.S. rise to dominance began with the wounds Britain suffered in those years.

What General McPeak is talking about here is exactly what I had in mind when I spoke about the uncertainties of war, and the unintended consequences that war can bring. To my mind, those uncertainties should not be taken as lightly as Gary seems to do. Good generals and good political leaders never take them lightly.

And there is another issue that goes beyond mere strategy. It is the question of how much new evil we will unleash on the world through our use of force. We often talk as if once we know that our cause is a just one, the deaths, the sickness, the famine, the refugees, the dislocations caused by war don’t really count or aren’t our concern. I think that is wrong. Whenever we exercise our power we affect others, and we are morally responsible for what we do. The more evil we cause in the world through our military action, the greater must be the showing that it is counterbalanced by the good we will accomplish. If we do not take this into account when we go to war, we are not living up to our own ideals. The deaths of Iraqis are the deaths of fellow human beings. The refugees we will create are fellow human beings. The children who will die of malnutrition and disease both during and after the war are fellow human beings. That is why Sun Tzu said that the best general is one that never has to fight. He recognized that when you go to war, you destroy-- often in unpredictable ways that can quickly spin out of control. And such destruction is to be avoided unless there is no other way. War is a necessary evil. When it is necessary it must be pursued vigorously, without apology; but when a necessary evil is not necessary it is just plain evil.

Most Americans I listen to today who talk about the war with Iraq do not seem to worry much about the evils that others will suffer. They worry only about American casualties. I think this is short-sighted. The evil we do today, even for the best of reasons, will live on, spreading its effects throughout the globe, and coming back to haunt us in unexpected ways. War is the most serious business of the state, posing the ultimate question of life or death. It should not be treated carelessly or cavalierly. I fear that is precisely what we are about to do.

The bright Yale Law students who run The Kitchen Cabinet offer a possible solution to the problem posed by my previous post in which I asked whether George H.W. Bush's nomination of Clarence Thomas to replace Thurgood Marshall violated the colorblindness principle currently at issue in the debate over affirmative action. They make the following argument:

[P]residents are "allowed" to consider a whole host of things in making judicial nominations that we wouldn't consider relevant or appropriate in an undergraduate-admissions context -- whether the president trusts and respects the candidate, whether they have personal rapport, whether the candidate stands a decent chance of being confirmed or of serving for many years, etc.

I'd consider a different set of personal characteristics in drawing up a list of invitees to a dinner party than I would in deciding whom I'd let join my Richard Posner fan club. Do I need a "principle" to do that, other than "they're two different things?"

. . . . The president's nomination of Supreme Court Justices is, at bottom, his personal choice. Ideally, we'd like his choice to reflect some national or party consensus about the kind of person we want on the Court, but if the president wants to ignore what everyone else thinks and draw a name out of a hat, he can. He's under no obligation to explain how he chose. There's no question of what's "allowed" and what's not; that's just the way the process works. (Of course, the Senate confirmation process provides a check on presidential idiosyncrasy.)

But because the University of Michigan is a public school, its admissions officers are acting as agents of the citizens of Michigan to allocate the limited seats in the class. No one believes that the criteria for that allocation should be left up to the personal whims of individual admissions officers; therefore, it's appropriate to ask what they are "allowed" to consider.

This leads to a number of interesting questions.

(1) Is the difference between the President and the University of Michigan admissions committee that the members of the admissions committee are acting as agents of the state while the President of the United States is not? That is, is the problem a failure of state action?

(2) Is the difference that when the President picks a Justice of the Supreme Court, it is essentially like choosing whom to invite to a dinner party, a purely "private" choice with no recognizable public consequences, while the choice of the entering class at the University of Michigan is a public choice with clear public consequences?

(3) Is the difference that in order to carry out his duties the President needs people around him he can trust and feel comfortable with, whereas the Michigan admissions committee doesn't have to trust or feel comfortable with the class they admit?

Suppose that the local sheriff in a small town in my home state of Missouri says: "When I pick deputies, I have to pick people I feel comfortable with, because they are the ones who will be watching my back if we get into trouble. I need people I can trust. The public safety is at stake. And I just have to tell you, I just don't feel comfortable with women or black people." Does this violate the colorblindness principle? Would it violate Title VII of the Civil Rights Act of 1964? Now suppose the Commander-in-Chief and says, "You know, I just don't trust black advisors. They are shiftless and lazy." Does this violate the colorblindness principle?

(4) Finally, suppose the President, when asked why he chose a particular person as a Justice, responds, "Well, he's white and I think that only white people should be Supreme Court Justices." Does this decision by the head of the Executive Branch of the federal government violate the colorblindness principle? Does it fall outside the ambit of the colorblindness principle as long as the President keeps quiet about his reasons? (This would be a sort of "don't ask / don't tell" solution to the problem.). If so, is this answer consistent with Washington v. Davis, which holds that facially neutral government practices violate the Equal Protection Clause if they are secretly motivated by a racial animus?

So what's the point of all these questions? Is it just to make advocates of colorblindness look silly? No, that's not the purpose. Rather, my goal is to make the following points about antidiscrimination law.

First, "colorblindness" is a provisional principle of equality, it is not equality itself. Second, although the principle seems clear and determinate, on closer inspection, it turns out that it is enormously complex and indeterminate. The concept of colorblindness cannot be implemented without a series of decisions about what constitutes actionable discrimination "on the basis of" race. Third, what sorts of private or state action are seen as properly falling within the ambit of the colorblindness principle shifts over time in response to social contestation. Some practices that previously were never considered as violations of colorblindness later become seen as paradigmatic violations, and vice versa

This fact leads to all sorts of ironies. For example, the same day the President denounced the Michigan plan, an action which was widely applauded by advocates of colorblindness, he advocated Texas's Ten Percent plan (which as I've explained in a previous post, is not colorblind). The next day he announced that he would push for increased funding for historically black colleges, which is also not really a colorblind decision. One assumes that he did this without any sense of contradiction.

But back to Clarence Thomas, and the point of my original post: The category of Presidential appointments that take race as one factor in the overall political calculation is a good example of the sort of race conscious state action that is generally not recognized as falling within the ambit of the colorblindness principle-- that is, unless the President is stupid enough to make an issue of it. George H.W. Bush did that when he said at the press conference announcing Thomas as his pick that race had nothing to do with his selection, and that Thomas was simply the most qualified candidate. Thomas is an intelligent man, and has proven to be a very interesting Justice, but it was simply not true that in 1991 he was the most qualified individual for the job, and everybody knew it. When a politician says what George H.W. Bush said, he's just begging for people to call him on what he did. If a President said publicly that he would not hire a black person as a close advisor, that would also cause people to shift their notion of how the colorblindness principle should be implemented. What was before simply swept under the rug or ignored would then become an issue of social contestation.

Advocates of colorblindness often assume that they and not their opponents have moral clarity on their side. Nothing could be further from the truth. The more you know about the history and implementation of the colorblindness principle in American antidiscrimination law, the more you come to realize that the concept of colorblindness is not as clearcut as it seems.

Suppose it could be shown that one factor in George H.W. Bush's nomination of Justice Clarence Thomas in 1991 was that Thomas was black. (I realize that this is difficult to believe, but bear with me). Suppose that Bush said to himself, "When Thurgood Marshall retires, I need to fill his seat with another African-American and Thomas is the most conservative African-American I can find with the requisite experience in law and necessary degree of legal talent." In 1991 there were more qualified and experienced legal scholars, particularly among conservatives. But Thomas met at least the minimum requirements of legal skill and experience, and he was African American, and therefore more likely (at least judged ex ante) to win confirmation.

Some questions for the class:

(1) Was the nomination of Clarence Thomas consistent with the principle of colorblindness?

(2) If the answer to question (1) is no, did George H.W. Bush violate his oath of office to uphold the Constitution when he nominated Thomas?

(3) If the answer to question (2) is no, then what principle allows presidents to take race as one factor among many in nominating Supreme Court Justices but does not allow the University of Michigan to take race as one factor among many in selecting a student body?

(4) Suppose that the reason why Presidents or other executive officials may take race into account in nominating judges and Justices, or in selecting cabinet members or National Security Advisors is that these are political appointments and that one is permitted to use race to secure political support. Is this practice consistent with the Supreme Court's statement that using race in government decisionmaking should be subjected to strict scrutiny because it is divisive and reinforces racial identities, and fosters the racial division of American society?

(5) Is the use of race as one factor in Presidential appointments in order to please potential voters more or less praiseworthy than the use of race to produce a diverse student body from which students might learn from each other?

The Raving Atheist has just declared me "Godidiot of the Week" for a recent post that uses the I Ching to discuss the war on Iraq.

I'm so proud.....

For an encore, I invite my readers (both of you) to suggest other questions for me to pose to the Oracle of Change. If I receive enough questions, I will cast the hexagrams and provide commentary on a regular basis. All questions must be serious and of the sort you would be willing to have openly discussed in public. Please do not ask questions of the form: "Hey Jack, why are you such a stupid git?" as I think you already know the answer.

John Rosenberg’s very interesting set of responses to my previous posts on colorblindness lead me to offer an additional point about colorblindness and baselines.

In a previous post, I pointed out that one’s sense of what constitutes “equal rights” and what constitutes “special rights” for a group depends on the baseline of expectations. I pointed out that Justice Bradley struck down the Civil Rights Act of 1875 because he thought that antidiscrimination laws made black people “the special favorite of the laws.” I also pointed out that if one takes the common law as the baseline of fairness, antidiscrimination laws do in fact shift power from whites to blacks, and that is why many whites opposed them. The common law rules of property and contract, after all, make no distinction based on race; these rules apply to blacks and whites alike, and in this sense they are colorblind. In order to see the Civil Rights Act of 1964 as fair one has to believe that the common law rules of contract and property, although formally neutral as between blacks and whites, are simply unfair when operating against the background of racial stratification in the United States.

John disagrees and says that I am “simply wrong” about this. He replies:

Neither the majority who passed the Civil Rights Act nor those who today defend its attempt to legislate neutral colorblindness "reject the fairness of the common law rules of property and contract."

With all due respect to John, I just don’t think this can be right. Suppose we got rid of the Civil Rights Act of 1964 and returned to the common law rules. Those rules include the right to refuse to contract with others for any reason, including their race. In at-will employment contracts the common law also gives employers the right to fire an employee at will because of their race. Similarly, under the common law rules one was permitted to rent or sell to refuse to rent or sell real property because of race.

Common law rules regarding inns and some places of public accommodation were somewhat different: traditionally, the innkeeper could not refuse service. Apparently in many southern states that common law rule was different-- it did not apply to restaurants and hotels; instead the restaurant or hotel owner had the right to eject people he did not want to serve using the common law rules of trespass. In any case, even where a place of public accommodation could not refuse service to a willing customer, there was no requirement at common law that the facilities had to be integrated. At common law, one could have separate drinking fountains for whites and blacks, and require blacks to sit at the back of the bus, as long as they were allowed on the bus in the first place.

Now the people who fought for the Civil Rights Act of 1964 wanted to change this state of affairs, in which private employers could refuse to hire people because of their race and could fire at will employees because of their race. They also wanted to desegregate privately owned bus lines and dismantle segregation in other places of public accommodation. In short, they wanted to prevent white businessmen from exercising their common law rights.

Now I take it that John believes that these practices were odious. But they were protected by common law rules of contract and property. People who engaged in this practices were simply doing what the common law allowed them to do. So in what sense can he be claiming that these rules are fair?

Whether John recognizes it or not, the Civil Rights Act of 1964 modified the common law baseline of expectations about fair treatment and replaced it with a new one. Under this new regime you could refuse to serve a person because they were not wearing a shirt or shoes, but you could not refuse to serve them because they were black. You could fire at-will employees or refuse to promote employees because they were too short, or too loud, but not because of their race. From now on, racial motivations were now treated differently from all other motivations. Not surprisingly, this change in baselines worked to the advantage of blacks. Antidiscrimination laws are in derogation of common law notions of freedom, and that is why many conservatives opposed them when they were first proposed, arguing that they gave minorities special rights. The same debate is playing out now with respect to gay rights. I hope that the objection that gay rights are special rights is eventually rejected too, and for much the same reasons.

Congressional power to prohibit discrimination. John makes one other rather technical point that I think is worth commenting on. He argues that, contrary to my view, Congress shouldn't be able to pass civil rights legislation prohibiting purely private discrimination through its powers to enforce the 14th Amendment. The reason is that this would require overturning the 1883 Civil Rights Cases, and would also abolish the state action requirement. (The Fourteenth Amendment says that "no state" shall deny equal protection of the laws.)

I've written on this issue at length, and won't repeat all my arguments here. But I do want to point out three things. First, the state action requirement is analytically separate from the scope of Congress's power to prohibit discrimination. Courts might only be able to reach unconstitutional state action, but Congress might have much broader powers under the Fourteenth Amendment to proscribe and prevent violations of civil rights. Second the state action requirement by its own terms does not apply to Congress's powers to enforce the Citizenship Clause. Third, the 1871 and 1875 Civil Rights Acts, which were drafted and enacted by many of the same people who drafted and passed the Fourteenth Amendment, did reach private discrimination. That is the strongest possible evidence that the Civil Rights Cases of 1883 are inconsistent with original understanding of Congress's powers under the Fourteenth Amendment. (I'm not an originalist, but for those who think that original understanding matters, this is a powerful argument). Moreover, as historians of Reconstruction have pointed out, the result in the Civil Rights Cases appears to reflect not the original understanding but the changed racial politics of the Compromise of 1876, in which Northern whites ended Reconstruction and basically acquiesced to Southern white domination of their black populations. The history shows that the motivations behind limiting Congress's power to pass civil rights laws in the Civil Rights Cases were racist, even though the purported justification was states rights (sound familiar?). The Supreme Court has ratified and extended the result of the Civil Rights Cases in United States v. Morrison. But I don't think that case was correctly decided either, and I think it's a disgrace that it relied on the Civil Rights Cases to limit Congressional power to pass new civil rights legislation.

This is the second of two posts on the history of the concept of colorblindness. In the first installment, I explained why colorblindness is inconsistent with the original understandings behind the Fourteenth Amendment. Although this is not a problem for me, it is a problem for originalists who support colorblindness. In today’s post, I discuss how the idea of a colorblind Constitution arose, and explain how it was actually premised on the continuing social inequality of the races.

As I noted previously, most of the Framers of the Fourteenth Amendment believed in a distinction between civil, political and social equality. Civil equality included the the right to make contracts, own property, sue and be sued, give evidence in courts, enjoy freedom of speech and religious liberty. Political equality included the right to vote, hold office, and serve on juries. Social equality meant equal status in society, and concerned social comingling and intermarriage. The Fourteenth Amendment was understood to guarantee blacks civil, but not political or social equality. It was not a guarantee of colorblindness. When people said that the Fourteenth Amendment made all races equal before the law, it meant only that they were civilly equally, not politically or socially. They were equal in their “civil rights,” that is, their right to make contracts and hold property, sue and be sued in court, but not in any other respect.

Furthermore by “civil rights” people in the nineteenth century did not mean that *private* parties could not discriminate on the basis of race, (that is a twentieth century conception of “civil rights”) but rather that the *state* could not limit the power of blacks to contract or hold property. When we read nineteenth century political and legal arguments we have to keep this special meaning of “civil rights” and “equal before the law” in mind.

II. Justice Harlan and the Origins of the “Colorblind Constitution.”

In fact, the rhetoric of colorblindness does not emerge in Supreme Court doctrines until Justice Harlan’s famous dissent in Plessy v. Ferguson. Plessy upheld a Louisiana law that required segregated railway carriages. The court conceded that the Fourteenth Amendment made blacks and whites equal before the law-- for that is what civil equality meant. The right to sit next to whites, however, was a matter of social equality, and was not guaranteed by the Fourteenth Amendment. Similarly, a decade before Plessy, in Pace v. Alabama, the Supreme Court upheld a ban on interracial marriage, arguing that blacks and whites were equally forbidden to marry each other. The point was that marriage, like social intermingling, was an issue of social, not political or civil equality. In this respect neither Pace v. Alabama nor Plessy v. Ferguson are inconsistent with the original understanding of the Fourteenth Amendment.

Justice Harlan’s dissent in Plessy has been championed by contemporary defenders of colorblindness, often without fully realizing what Harlan was saying. Justice Harlan’s objection to the majority in Plessy was not that the Fourteenth Amendment guaranteed social equality. He had, after all, joined in the opinion in Pace v. Alabama. Rather, he argued that the Louisiana law violated aspects of civil equality. Social equality was irrelevant. When blacks sat next to whites, this did not make them social equals, and they were unlikely ever to be so. All that colorblindness meant to Harlan was civil equality, which to him was the same thing as “equality before the law.” So civil equality and colorblindness were completely consistent with racism in social organization. Indeed, before Harlan makes his famous statement about colorblindness, he has this to say:

The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.

Only after Harlan establishes his belief in white social supremacy and black social inferiority does he make his famous claim that the Constitution is colorblind. And in light of the distinction between civil, political, and social equality, this famous passage has a very different meaning to it than most people think it does:

But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

(emphasis added)

Remember that for Harlan being equal “in the eyes of the law” means only civil equality, not social equality. Blacks will be social inferiors for all time, and that’s perfectly fine, and is even to be expected, as long as they have equal rights to make contracts, sue and be sued, and so on. (Remember also that the equal right to make contracts does *not* mean that private persons may not discriminate on the basis of race in making contracts. It means only that the state may not put restrictions on blacks’ rights to contract that it does not also put on contracting by whites).

But what about the mingling of races in railway carriages? Isn’t that an attempt to enforce social equality? Harlan has a ready answer, which, once again, puts the notion of colorblindness in a very different light:

social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot-box in order to exercise the high privilege of voting.

That is, just because a black person gets to vote, or serve on a jury, or sit next to a white person in a railway carriage doesn’t make them social equals of whites. Colorblindness, Harlan insists, is perfectly consistent with blacks being social inferiors forever.

And to clinch the argument, Harlan notes that the Chinese, who in his view rank even lower than blacks, can sit in railway carriages with whites:

There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.

What do we learn from all this? When the idea of colorblindness was first introduced into American constitutional discourse by Justice Harlan, it did not represent a full grant of equality to blacks. Rather, it was a grant of basic economic rights to blacks while preserving a sphere of private choice or discrimination in which blacks would remain socially inferior to whites. Colorblindness did not permit the state to deny blacks the right to earn a living or own property on terms different from whites, but neither did it permit interference in the private sphere of private association. Whatever social stratification resulted from purely private choices was not the law’s business. Regardless of what happened in the private sphere, black and white were still "equal before the law."

This vision of colorblindess was central to conservative opposition to the Civil Right Act of 1964. Both Strom Thurmond and Ronald Reagan opposed the Civil Rights Act of 1964 on the grounds that it interfered with private association, private property, and private contract. Both Thurmond and Reagan could claim that they believed in colorblindness in Harlan’s terms, for in many aspects of Jim Crow the state was not denying blacks the right to contract or hold property. Rather, private citizens were refusing blacks the right to sit at lunch counters or ride on privately owned busses.

The idea of colorblindness was reformulated in light of the victory of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Conservatives who previously opposed it now accepted it, and their ideological descendents reinterpreted colorblindness as now applying to (some) private action as well as public. Many conservatives assume that the Civil Rights Movement was just a call for colorblindness, but this is incorrect. Colorblindness is only one theme in the rhetoric of the Civil Rights Movement, and indeed, it may not have been the dominant one. Martin Luther King's famous “I Have a Dream” speech is remembered today for its line about colorblindness, but that was because it was most palatable to White America. What King actually said in that speech was this:

There are those who are asking the devotees of civil rights, "When will you be satisfied?" we can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until justice rolls down like waters and righteousness like a mighty stream.

In fact, the Civil Rights Movement had a much thicker, more substantive view of equality than the formal notion of equality generally associated with contemporary colorblindness rhetoric, which usually finds nothing constitutionally troubling about wide disparities in effects on blacks and whites unless there is overt racial classification or proof of deliberate intent to harm. In this way, colorblindness can actually be employed to preserve the racial status quo, and that is not what King was about. The Civil Rights Movement was about practical freedom, the right to adequate jobs and housing, among other things, not simply about formal equality between the races. We must remember that the full title of the March on Washington was the March on Washington for Jobs and Freedom. (Note which one comes first in the title).

It is no accident that the rhetoric of colorblindness was selected from the many strands of argument that the Civil Rights Movement made and was championed by whites who were deeply concerned about how far the movement might go. When conservatives insist on colorblindness today, they are picking out that portion of the rhetoric of the Civil Rights Movement that is most hospitable to their ideology, but their views are not identical to those of the Civil Rights Movement.

The notion of colorblindness championed by conservatives today insists that governments (and some private employers and landlords) may not make decisions on the basis of race. But that requirement plays out against the background of continuing socioeconomic disparities between blacks and whites. Nevertheless, according to the modern notion of colorblindness, the continued socioeconomc disparity between blacks and whites is completely consistent with blacks and whites being equal before the law, because such disparities are the result of a private sphere of individual choice and social interaction. By contrast, attempting to remedy the socioeconomic disadvantage of minorities through race conscious remedies is impermissible “social engineering,” which disturbs the natural outcome of impersonal market forces that reflect private choices.

Thus, if we examine how the rhetoric of colorblindness has actually been invoked by whites from Justice Harlan forward, we will see that it always has carried with it the acceptance of social inequalities between blacks and whites that are explained and justified as the result of a private sphere of social interaction. The boundaries of public and private shift over time, but the notion that blacks and whites are not socially equal and cannot be made so by law remains a constant theme. Put another way, those forms of social stratification that a colorblind system of law does not reach are by definition not law’s fault, for by definition a colorblind law treats everyone as an individual, and therefore as equal before the law. That statement that could have been made by Justice Harlan in 1896, or by advocates of colorblindness today.